Column: Affirmative consent will muddy the waters with sexual assault
In the wake of the release of the report finding Michigan State at fault for creating a “sexually hostile learning environment,” the rate of sexual assaults on campus and what can be done about them are being discussed now more than ever. President Lou Anna K. Simon emailed students and faculty regarding revisions to the university’s sexual harassment policy almost immediately, and other changes, such as the creation of the Office of Institutional Equity, are beginning to take effect.
While it’s commendable that the university is taking these steps to right past wrongs and calm the minds of survivors, the changes come much too late for some and, for others, they simply aren’t enough.
Sexual assault is a difficult issue to handle, as concrete evidence can be lacking in many cases. This can create a “he said, she said” environment where the university uses a “preponderance of evidence” (http://www.hr.msu.edu/documents/uwidepolproc/RVSMPolicy.pdf) to decide whether or not the institution’s sexual assault policy was violated. In these cases, the words of a sexual assault victim are taken as fact by the university if the evidence suggests his or her story is viable enough.
Several universities across the country are taking this idea one step further, and enacting policies requiring “affirmative consent” in sexual situations. Affirmative consent means, in the simplest terms, that if an individual does not verbally consent to a sexual act, they have been assaulted. The responsibility then is shared between each individuals to ask for consent before performing any sexual act, and even between acts, to affirm that consent is still present in the situation.
This is not the way to prevent sexual assault.
I can understand the appeal. Consent is a touchy subject when it comes to campus assaults, especially when alcohol or drugs are introduced into the situation. It makes sense that a concrete policy regarding consent is desired in this type of community, especially when that policy involves active vocal participation of both parties.
However, upon closer inspection, a number of problems begin to appear. It begs the question of what constitutes a “yes” response. Can similar words be substituted in for this confirmation of consent? As long as there is a verbal response, the answer seems to be so. But what if a person finds themselves in a situation where they feel they may be at risk of harm if they choose not to verbally consent to a sexual act? Verbalized consent doesn’t ensure a willing participant. An assailant can also easily lie and claim he or she received verbal consent, even if that may truly not be the case.
Furthermore, the requirement of verbal consent essentially criminalizes the sexual behavior of many long-term couples I know, who admittedly do not stop to ask questions before getting intimate with their partner. In these cases, it is an unspoken agreement between partners that consent can be revoked by a simple “no” or shift in body language.
It’s also worth noting that universities policies do not directly correlate with state or national laws regarding sexual assault, although some are pushing for that expansion. This can create unnecessary confusion for students whose universities have adopted the policy and are struggling to reconcile the differences between the legal system and the internal judicial proceedings of the university. For example, a student may be found in violation of university policy, but not actually be considered guilty in the eyes of the law.
Universities are not currently equipped to deal with sexual assaults correctly, and the addition by certain institutions of the “yes means yes” policy is far from the shining solution both students and faculty are hoping for. As it currently stands, MSU’s Sexual Misconduct Policy requires that consent “must be clear and communicated by mutually understandable words or actions,” which allows for nonverbal consent to still be used as a viable method of consent. While this definition is not perfect by any means, it makes more practical sense in the context of real-world relationships between students.
I fear that, with the spotlight on MSU, another revision in policy could take us one step further away from the goal of picking out actual abusers and punishing them correctly as confusion mounts over definitions and students’ prior understanding of what consent entails. A solution that is both logical and just is necessary if universities are to handle sexual assault cases effectively. Affirmative consent is not that solution.